Friday, October 19, 2012

More on recusal in McClendon hearing

When the almost 90 minute discussion to recuse Dayle Harrison from discussion about a proposed development along the Lake Michigan shore finished, Saugatuck Township Planning Commission Chairwoman Margaret Baker Conklin took the microphone.

“I’m sorry, Dayle,” she said Wednesday night.

The recusal topic occupied the first part of the lengthy meeting on a proposal by developer Aubrey McClendon to develop land north of the Kalamazoo River. It’s the second request before the township. The first is a set of variances being considered by the zoning board of appeals.

“The applicant has the right of the appearance of a fair hearing as well as an actual fair hearing,” Hanson said, citing the planning commission’s bylaws.

Section 5.2 says: “If there is a question whether a conflict of interest exists or not, or if there is an appearance of a conflict of interest, the question or issue shall be put before the Planning Commission.”

The issue came down to another possible lawsuit. Bultje did not want planning commission decisions overturned in “a loser lawsuit” in court because of Harrison’s conflicts of interest.

“Mr. Harrison fails the impartial decision-making test,” he said. “I don’t think he can fairly judge the development application at this point.”

Recusal means Harrison cannot participate as a planning commission member in discussions and voting on McClendon’s plans. He is still a planning commission member and can participate in other commission activity.

In fact, Harrison spoke later in the meeting, saying the development plan needs adjustments.

“I’ll be back. I’ll meet with the board and see what we can come up with,” he said.

Letter

Here is the letter (without the footnotes) from McClendon attorney James Bruinsma of Myers Nelson Dillon and Shierk of Grand Rapids to Conklin. Attached were more than 90 pages of information:

Dear Ms. Conklin:

We are writing on behalf of our client, Singapore Dunes, L.L.C. (Singapore Dunes).

On August 24, 2012, Singapore Dunes filed with the Township Clerk an application for review and approval of a Site Condominium Project Plan under § 40-938(b) of the Saugatuck Township Zoning Ordinance. It is our understanding that review of the preliminary and final plans is conducted exclusively by the Planning Commission in accordance with the procedures set forth in §§ 40-938 – 40-940.

One of the current members of the Planning Commission is Dayle Harrison. For the reasons set forth below, we object to his participation in any review of, deliberation regarding, or decisions relating to the preliminary or final site condominium project plans, including any participation at the public hearing set for October 17, 2012. Mr. Harrison has engaged in a course of conduct, both directly and through various organizations, demonstrating that he will not, or likely will not, give fair consideration to Singapore Dunes’ application. We believe that he will instead seek to use the regulatory process as a pretext to create additional expense and delay for Singapore Dunes, and ultimately to obstruct the lawful exercise of Singapore Dunes’ private property rights.

We request that Mr. Harrison recuse himself from participation; and, if he refuses to do so, that the remaining members of the Planning Commission consider the question, vote to disqualify him from participating, and take steps to ensure that he does not participate in or disrupt the proceedings.

Requirement that Singapore Dunes be afforded Due Process

The Planning Commission’s consideration of a site condominium application is an administrative proceeding. In such a proceeding, Singapore Dunes is guaranteed certain due process protections under the federal and state constitutions. Among these due process protections is a hearing before an unbiased and impartial decisionmaker. The decisionmaker must be free from not only actual bias, but also the appearance of bias. Here, there is abundant evidence of both actual bias and the appearance of bias by Mr. Harrison.

Mr. Harrison’s Affiliation with the Kalamazoo River Protection Association and the Saugatuck Dunes Coastal Alliance

Over the past several years, Mr. Harrison has been enmeshed in other matters with Singapore Dunes, both individually and through two aligned entities, the Kalamazoo River Protection Association (KRPA) and the Saugatuck Dunes Coastal Alliance (SDCA). The activities of Mr. Harrison, the KRPA, and the SDCA are so overlapping and comingled as to be indistinguishable from one another, at least with respect to Singapore Dunes’ property interests.

There can be no dispute about the connection between Mr. Harrison and these entities. Mr. Harrison is the founder, President, and resident agent of the KRPA, and the KRPA is in turn one of the founding organizations or “incorporators” that make up the SDCA — an alliance of six local organizations. Mr. Harrison personally prepared and filed the SDCA’s articles of incorporation, and Mr. Harrison has acted as an environmental and legal consultant to both the KRPA and the SDCA. Over the past two years at least, the two organizations have shared common legal counsel, filed joint submissions in pending court matters regarding Singapore Dunes, filed joint applications with the Michigan Department of Environmental Quality regarding Singapore Dunes’ land, and have otherwise coordinated (and lobbied state legislators and state agencies) to oppose efforts by Singapore Dunes to vindicate its constitutional and private property rights. As Mr. Harrison is President of the KRPA, we would expect that all of these actions were taken with Mr. Harrison’s active knowledge and support.

Examples of Mr. Harrison’s bias against Singapore Dunes and the exercise of its private property rights

The inability of Mr. Harrison to preside over the Singapore Dunes’ application is demonstrated by several examples.

First, Mr. Harrison has prejudged the site condominium application. Even before the application was filed, in a posting dated August 8, 2012 on the SDCA’s website, the SDCA derided the site condominium application as “blackmail” by Singapore Dunes. This posting included the further misrepresentation that a site condominium application under the Township Zoning Ordinance is not a lawful option for Singapore Dunes, but is to be treated by the Township decision-makers as “threats and intimidation to get special treatment.”

These misrepresentations demonstrate that, through his organizations, Mr. Harrison has abandoned any pretense of neutrality, does not recognize that Singapore Dunes has the same rights as other property owners, and will continue to work to unlawfully interfere with Singapore Dunes’ property rights.

Second, Mr. Harrison has been directly adverse to Singapore Dunes in related matters that preclude fair treatment of the pending application. As the Planning Commission is aware, Singapore Dunes recently entered into a settlement agreement with the Township that included entry of a consent judgment. Mr. Harrison and the SDCA and KRPA not only opposed settlement of the litigation, but they have been unrelenting in their disparagement of Singapore Dunes and its efforts to restore the private property rights that were improperly taken away by the R-4 Zoning classification that has been enjoined by the Court.

The KRPA and SDCA jointly made filings with the United States District Court in opposition to the consent judgment that was approved by the Court. In those and prior filings, the KRPA and SDCA falsely accused Singapore Dunes of implementing a “plan to illegally rezone Plaintiff’s property;” they falsely accused Singapore Dunes of “attempting to evade the Township’s lawful planning and zoning process;” and they falsely accused Singapore Dunes of taking “measures to exert financial and emotional pressure on the Defendants and Saugatuck Township area residents.” These false statements were accompanied with hyperbolic personal and petty insults — “bullying billionaire,” “sling[ing] mud,” “colluding” — not remotely suited to a serious, or fair, consideration of the issues. This course of conduct renders Mr. Harrison utterly unfit to discharge his duties fairly and without bias with respect to the pending site condominium application.

Third, Mr. Harrison has worked behind the scenes to interfere with Singapore Dunes private property rights. In 2008, the KRPA surreptitiously filed an application with the Michigan Department of Environmental Quality seeking to impose, involuntarily and without notice to Singapore Dunes, an “environmental area” designation on Singapore Dunes’ land specifically to prevent “housing developments,” which the KRPA deems to be unsuitable in this stretch of the Kalamazoo River. Mr. Harrison also initiated an effort with the DEQ to redraw the critical dune area boundaries in Saugatuck Township to encompass additional acreage of Singapore Dunes’ land, again without notice to Singapore Dunes. When Singapore Dunes sought to repair and maintain the failing seawall on its property, Mr. Harrison opposed the permit application of Singapore Dunes, stating that such maintenance was at odds with “preservation of the Shoreline and Dunes.” These strategies, “to use the various administrative, permitting, and review processes…to minimize or eliminate development on the former Denison property,” were announced by Mr. Harrison’s organizations in 2007. They promised then a multi-year, multi-faceted effort “to preserve the former Denison property,” without regard to the private property rights at stake, and they have engaged in a non-stop campaign ever since to interfere with those rights.

Finally, Mr. Harrison has personally made inflammatory and false accusations regarding Singapore Dunes in the media in an effort to prevent Singapore Dunes’ lawful exercise of its property rights. As just one example, after Singapore Dunes lawfully sought review in the Michigan Tax Tribunal of the real property tax assessments on its property, and despite the fact that two independent appraisers (one of whom was hired by the Township) agreed that those assessments were too high, Mr. Harrison wrongfully accused Singapore Dunes of refusing to pay its fair share of taxes and seeking a “bailout” from the Township.There is no possibility that Mr. Harrison will function as a fair decisionmaker, and there is no possibility that the public can have any confidence that he will be acting within the bounds of the law and not on the basis of personal animus.

We expect that Mr. Harrison’s organizations will respond to this recusal request with a new round of insults toward Singapore Dunes and with yet another allegation that Singapore Dunes is seeking to “bully” the Planning Commission. But the opposite is true. No matter how stridently certain members of the public may disparage Singapore Dunes, Singapore Dunes is entitled to the same fair treatment under the law as any other landowner. Indeed, the Township agreed to the entry of, and is bound by, a consent judgment to ensure that Singapore Dunes will be treated fairly and will not again be singled out in connection with its land use rights. Singapore Dunes has every expectation that the Planning Commission will abide by the terms of the consent judgment.

The recusal of Mr. Harrison is a necessary first step in ensuring fair treatment, and his recusal should occur at the outset of the proceedings on this site condominium application, immediately prior to consideration of the application itself.